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Boston College Third World Law Journal Volume 10 | Issue 2 Article 2 5-1-1990 Panel Discussion: Options for a Law-Abiding U.S. Policy in Central America Follow this and additional works at: http://lawdigitalcommons.bc.edu/twlj Part of the International Law Commons Recommended Citation , Panel Discussion: Options for a Law-Abiding U.S. Policy in Central America, 10 B.C. Third World L.J. 215 (1990), http://lawdigitalcommons.bc.edu/twlj/vol10/iss2/2 This Article is brought to you for free and open access by the Law Journals at Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College Third World Law Journal by an authorized administrator of Digital Commons @ Boston College Law School. For more information, please contact [email protected]. PANEL DISCUSSION: OPTIONS FOR A LAW­ ABIDING U.S. POLICY IN CENTRAL AMERICA RECORDED AT THE INTERNATIONAL LAW ASSOCIATION INTERNATIONAL LAW WEEKEND, NOVEMBER 4, 1988* EDITOR'S NOTE..................................................... 215 I. INTRODUCTION: Thomas Farer, Moderator............................ 218 II. MULTINATIONAL INVOLVEMENT IN THE CENTRAL AMERICAN PEACE PROCESS: Anne-Marie Burley........................................ 219 III. LEGAL PRINCIPLES, IDEOLOGY AND HUMAN RIGHTS IN CENTRAL AMERICA: Thomas Farer. 222 IV. THE ROLE OF THE I.e.J. IN Nicaragua v. United States: Jonathan Charney. 225 V. THE HISTORICAL SUPPORT FOR THE I.C.J. IN THE UNITED STATES: Mark Janis. .. 228 VI. LIVING WITH LEFTIST REGIMES IN CENTRAL AMERICA: Jules Lobel. 230 VII. LEGAL OPTIONS FOR KEEPING THE PEACE IN CENTRAL AMERICA.. ... 233 A. Collective Security. 233 B. Measuring Damages in Nicaragua v. United States......... ..... 239 VIII. COMMENTS AND QUESTIONS FROM MEMBERS OF THE AUDIENCE...... 241 IX. CONCLUDING REMARKS............................................. 252 A. Changing the U.S. Conception of Its Hemispheric Role: Jules Lobel 252 B. Framing a Positive Response to the I.C]. Judgment: Mark Janis. 253 C. Using the Tools of International Law: Jonathan Charney. 254 D. Restructuring the Framework of International Law: Thomas Farer... 255 E. The U.S. Should Act MultilateralZv: Anne-Marie Burley. 256 F. Conclusions of the Panel: Thomas Franck. 256 EDITOR'S NOTEt All members shall refrain in their international relations from the threat or use of force against the territorial or political independence of any state . U.N. CHARTER, art. 2, para. 4 . • Printed with the permission of Condyne/The Oceana Group, Dobbs Ferry, N.V. The Editorial Board of the BOSTON COLLEGE THIRD WORLD LAW JOURNAL wishes to thank the panelists for their cooperation in our preparation of this transcript. t Edited by Kevin M. McGinty, Executive Editor, BOSTON COLLEGE THIRD WORLD LAW JOURNAL. 215 216 BOSTON COLLEGE THIRD WORLD LAW JOURNAL [Vol. 10:215 The controlling norms of international law forbid military in­ tervention in the affairs of other nations. Judged by this standard of behavior, the history of United States involvement in Central America has been a history of lawlessness. Between 1854 and 1990, U.S. troops have invaded Panama seven times, Nicaragua six times, Honduras four times, and Guatemala and the Dominican Republic once each. l This pattern of U.S. military intervention underscores the U.S. government's habitual disrespect for Central American sovereignty. Remarkably, international law has never held the United States accountable for violation of other nations' sovereignty by its own troops. In 1984, however, Nicaragua forced the United States to answer at international law for its illegal covert activities in that country. It sued the United States in the International Court of Justice (I.C.].) for damages arising from U.S. covert attempts to overthrow the Sandinista regime.2 In its complaint, Nicaragua alleged that it had suffered over $370 million in damages stemming from the activities of the U.S.-backed Contra rebels and from the Central Intelligence Agency (CIA) mining of Nicaragua's harbors.3 Nicaragua asserted that these U.S. activities violated the principle of non-intervention in the affairs of sovereign states,4 making the United States liable at international law for the damages it had caused to Nicaragua.5 The United States argued in response to the complaint that the I.C.]. had no jurisdiction over the suit.6 When the I.C.]. rejected the U.S. position, the United States withdrew from participation in the suit. 7 After hearing Nicaragua's argument on the merits of the case, the I.C.]. found against the United States on each count of the complaint.8 Although the I.C.]. held that the United States has I See Lopez, North American Interventionism in CONFLICT IN NICARAGUA 53, 65-66 (]. Valenta & E. Duran ed. 1987); THE CONTINUING CRISIS: U.S. POLICY IN CENTRAL AMERICA AND THE CARIBBEAN 4-5 (M. Falcoff & R. Royal ed. 1987); D. MCCULLOUGH, THE PATH BETWEEN THE SEAS 361-86 (1977). This tabulation includes the December 20, 1989 U.S. invasion of Panama. See N.Y. Times, Dec. 20, 1989, at AI, col. 1. 2 Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1984 I.C.]. 392 (Judgment of Nov. 26) [hereinafter Nicar. v. U.S. (Jurisdiction)]; 1986 I.C.]. 14 (Judgment of June 17) [hereinafter Nicar. v. U.S. (Merits)]. 3Id. at 20; see infra note 84 and accompanying text. 4 See, e.g., U.N. CHARTER, art. 2, para. 4. 5 Nicar. v. U.S. (Merits), 1986 I.C.]. at 19-20. 6 See Nicar v. U.S. (Jurisdiction), 1984 I.C.]. at 396-97. 7 See U.S. Dep't of State, Statement on the U.S. Withdrawal from the Proceedings Initiated by Nicaragua in the International Court of Justice (Jan. 18, 1985), reprinted in 24 INT'L LEGAL MATERIALS 246 (1985). 8 Nicar. v. U.S. (Merits), 1986 I.C.]. at 134-35. 1990] U.S. POLICY IN CENTRAL AMERICA 217 violated international law, the case has not proceeded to the dam­ ages phase. While the I.C.]. verdict in Nicaragua v. United States9 demon­ strated the lawlessness of U.S. Central American activities, the rec­ ognition of that lawlessness provides the United States with an opportunity to restructure its policy toward that region. In order to avoid an I.C.]. award of money damages to Nicaragua, the United States could instead frame a Central American policy premised on peaceful respect for the sovereignty of each state in the region. During the Winter of 1989-1990, the continued U.S. support for the besieged ruling regime in EI Salvador and the U.S. invasion of Panama have made the likelihood of such a Central American policy seem remote. On the other hand, the peaceful conclusion of the elections in Nicaragua and the election of the Chamorro govern­ ment make it possible that the United States might wish to adopt a Central American policy which respects the principles of interna­ tional law at all times, and not merely when it suits the United States. On November 4, 1988, a panel of distinguished scholars of international law met to discuss the possibility that the United States would take the opportunity presented by the Nicaragua case to renew its status as a proponent and exemplar of the principles of international law. In order of appearance, the panelists were: Professor Thomas Franck: Director of the Center for Interna­ tional Studies, New York University;!O Professor Anne-Marie Burley: Professor of Law, University of Chicago Law School;!! Professor Thomas Farer: Professor and Director of the Joint De­ gree Program in Law and International Relations, American Uni­ versity; !2 Professor Jonathan Charney: Professor of Law, Vanderbilt Law School;!3 91984 I.C.]. 392 (judgment of Nov. 26) (jurisdiction); 1986 I.C.]. 14 (judgment of June 17) (Merits). 10 B.A., 1952; LL.M., 1953, British Columbia; LL.M, 1954; S.J.D., 1959, Harvard. Pro­ fessor Franck is the author of numerous books on international law and has been Editor-in­ Chief of the American Journal of International Law since 1984. II A.B., 1980, Princeton; M.Phil., 1982, Oxford; J.D., 1985, Harvard. At the time of the panel discussion, Professor Burley was a Harvard MacArthur Fellow in International Security. 12 B.A., Princeton; LL.B., Harvard. Professor Farer is the former president of the Uni­ versity of New Mexico, past president of the Inter-American Commission on Human Rights, and a member of the Board of Editors of the American Journal of International Law. 13 B.A., 1965, New York University; J.D., 1968, University of Wisconsin. Professor Char- 218 BOSTON COLLEGE THIRD WORLD LAW JOURNAL [Vol. 10:215 Professor Mark Janis: Professor of Law, University of Connecti­ cut Law School; 14 Professor Jules Lobel: Professor of Law, University of Pittsburgh Law School. 15 The purpose of the discussion was to assess the implications of the decision in Nicaragua v. United States and to determine what courses of action were available to the United States in order that it might once again become a law-abiding nation in the international arena. Among the issues presented were 1) whether the U.S. should participate in the damages phase of the case; 2) what viable political alternatives to participation in the damages phase exist; and 3) what legal and political ramifications would follow from U.S. failure to participate in any damages proceedings. After the panelists pre­ sented their views on these issues, the floor was opened to questions and comments from the audience. What follows is a transcript of the panel discussion. 1. INTRODUCTION Thomas Franck, Moderator: Good afternoon. Our panel is going to discuss options for a law-abiding U.S. policy in Central America. Central to that theme is the notion that the United States is at a fork in the road in its Central American policy.
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